Getting a Judge, Part 3: Disbarment regarding the Marathon Trial

Vincent Ferrara (L), being released, and Judge Mark Wolf (good judge) 

By Mary W Maxwell, PhD, LLB

A Code of Ethics is not law.  Laws are passed by the people; codes of ethics are passed by guilds of a profession. As such, their aim is self-serving. The guilds are telling the public: You know, and we know, that our position makes it possible for us to take advantage of you, but we promise to discipline members who do that. (“So don’t be afraid to use our services!”)

Probably Hippocrates was being sincere when he wrote a code that forbids a physician to make sexual advances to a patient, or to spill secrets that he learns about his patients. But today, codes are primarily public-relations moves.

Unfortunately, they also serve to buffer the professional person from the law. When you think of it, if a doctor rapes a patient, the profession’s code of ethics need not come into the story at all. The doctor should be arrested.  But people usually think of looking to the profession for help.

A ridiculous situation develops when the holders of great power – for example the FBI – have their own board of discipline that decides if a member has done wrong.

We saw, in the case of the FBI man who murdered Ibraghim Todashev in his Florida home, that this officer was “investigated” by his boss.  The boss found no crime in that act of murder.

Note: if the public puts up with this, it is, in my opinion, the public’s fault. We should not be so foolish as to let powerful entities self-police.

Codes of Ethics for Lawyers

Every state has a licensing board for professions, such as accountants, nurses, doctors, and lawyers. This is one way to control individuals who want to hang out their shingle. You have to be registered or your business maybe ‘illegal.’  Some legislatures even make it an offense to practice without a license.

Lawyers are licensed to practice by the state.  If members act unethically, you can bring a complaint to the relevant board and ask for action. The likely actions are: that the board will tell the lawyer to stop doing that thing (say, overcharging), or will call her before a panel for a hearing.

The complainer will not be present at the hearing (unless called as a witness) but the professional person will be worried about getting disciplined. It is within the power of the association to give the person a rebuke (not published), a reprimand (which is always published), or a suspension or revocation of the license to practice.

Most state boards adopt the Code of Ethics recommended by the American Bar Association. It warns against doing such lawyer-naughties as 1. Failing to file papers on time for the client, 2. Communicating privileged information, or 3. Participating where there is a conflict of interest – such as representing A against B, where B used to be the client of that lawyer.

As far as I know, the board is not able to help  complainers overcome something the lawyer did wrong in their case. The client would have to sue for malpractice.

When doctors are sued, their group provides the defense attorney. So when you sue a doctor you are sort of suing the whole AMA. All doctors pay insurance for this. In fact getting this defense-fund help is what keeps most doctors in the AMA fold, where they are controlled in many ways!

Massachusetts Control of Lawyers

It appears to me that there are two watchdogs for the professional ethics of lawyers in Massachusetts. One is the Board of Bar Overseers, the other is the Attorney and Consumer Assistance Program of the Office of the Bar Counsel. (Tel. 617-728-8750).

As I mentioned in a January 23, 2016 Gumshoe article, “The Exculpation Waltz,” there was talk in Boston of an unethical lawyer, Jeffrey Auerhahn, a US Attorney. The First Circuit Court of Appeals had commented on Auerhahn’s behavior as “outrageous,” “egregious,” “feckless” and “a grim picture of blatant misconduct.”

That appeals court is not the proper authority to discipline the errant attorney, of course. So their words had no value in terms of doing something about it.

However the Board of Bar Overseers took an interest, possibly because of US District Judge Mark Wolf’s displeasure with the situation.

Recall that he had let Vinnie “Vincent the animal” Ferrara walk free, owing to attorney Auerhahn’s suppression of exculpatory evidence. (Wolf did it by reducing Vinnie’s sentence to the number of years already served.)

The Bar Overseers considered whether Auerhahn’s law licence should be suspended. (Ridiculous! he should have been arrested for the crime of obstruction of justice.) The panel that was to rule on the disciplinary matter consisted of three judges. One of the judges happened to be our man of the hour, George A. O’Toole.

If you did not read that article by me, I ask you to hazard a guess right now please:  For what length of time did this panel of judges suspend the practicing license of Auerhahn on account of his egregious behavior: two months, five years, or for the term of his natural?

Correct answer: none of the above. Like Vinnie, he walked free.

A Word about Impostors

So what’s the deal? Why didn’t the panel of judges rule against the lawyer? What prompted them to say (in a 2-to-1 ruling): “The allegations of professional misconduct have not been proven by clear and convincing evidence.” I think I’ve got the answer: it’s that the two judges are working for someone else.

Consider George W Bush. He was an impostor president. I developed the idea of his imposture in my 2011 book, Prosecution for Treason. There is simply no way he was working for the nation. He was employed by “secret forces.”

Consider the FBI. It is an impostor organization.  Thanks to a huge expense account for creating a good image for itself, the FBI has Americans believing that it is a law enforcement agency. No way. It has no mandate whatsoever to enforce the law.  Check the legislation that birthed the FBI. The Federal Bureau of Investigation is a – how can I say this – a bureau of investigation.

They can only investigate. Actually the “F” in FBI is as much of a giveaway as the “B-I” as to the restrictions on their duties. FBI couldn’t be a federal police because the US Constitution left the police power with the states.

Australia has a federal police, that’s dinkum, but if the US has one it’s an impostor.

Trust me. The FBI operates by bluff. You’ve seen them arrest people? Fine. They did it by making a citizen’s arrest. You can do it, too. It’s always legal to assist the police (who are but our servants anyway).

Sorry, I am veering off our topic. Let’s just say, in regard to the judges who could not find it in their heart to suspend Auerhahn’s licence, they can’t possibly be doing what they are paid to do. (O’Toole’s salary is $199K per annum.)

We must look closely here: if they really work for someone else, it’s vital to identify their employer! The same goes for US Attorney Carmen Ortiz, or Sydney’s Cardinal Pell. It’s not enough to say they ‘fail’ in their job. They really are doing a great job, just not the job you think!

How To Discipline a Judge

Finally, on the subject of ‘discipline,’ let’s finish the inventory of available methods. If there are means to pursue the disciplining of this judge I suppose someone may wish to bother doing it. Question: are there ethics rules specifically tailored to judges?

A few years ago, some silly member of Congress proposed legislating a Code of Ethics for the US Supreme Court. Of course I protested vigorously. If any of the Great Nine does not have a sense of the majesty of the law, he/she has no business being there at all, and no cute 2-page hand-out is going to set him/her straight.

Still, the American Bar Association did, in 1990, compose a Canon of Judicial Ethics. I see that they have since watered it down, but anyway it does contain one item that bears on the matter of “chatting with jurors.”

This is from the ABA’s Model Code for Judges:

RULE 2.8 Decorum, Demeanor, and Communication with Jurors

(B) A judge shall be patient, dignified, and courteous [etc]

(C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

Also, among the ABA model code of ethics for lawyers I found that, according to Rule 8.4 (e), it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Well that’s a very good catch-all!

I mean it for Judge O’Toole; he is licenced to practice law. As to whether that simple rule – 8.4(e) – can also be used as a basis for disciplining other persons who participated in the Tsarnaev trial, I think it would, as most states have adopted the ABA’s Model Code of Ethics.

Massachusetts has adopted Rule 8.4(e). I’m assuming that O’Toole’s law license is from Massachusetts since he was born in that state, and graduated from Boston College and Harvard Law School (in 1972). I do not know where Ortiz, Bruck, and the others are registered.

To recap, Part 1 was about impeachment, Part 2 was about Maret Tsarnaeva’s affidavit, and Part 3 discussed disbarment and the purpose of professional ethics codes.

Part 4 will be about criminal acts by members of the court. The question to be posed is: How do I arrest thee? Let me count the ways.

— Mary W Maxwell lives in Australia. She is the author of Consider the Lilies; A Review of 18 Cures for Cancer and Their Legal Status (2013)